These summaries were prepared by McGuireWoods LLP lawyer Thomas E. Spahn. They are based on the letter opinions issued by the Virginia State Bar. Any editorial comments reflect Mr. Spahn's current personal views, and not the opinions of the Virginia State Bar, McGuireWoods or its clients. 
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14-Ownership of Files and Attorney Lien Issues

48-Criminal Defense Lawyers

As long as their clients consent after full disclosure, criminal defense lawyers may enter into an agreement with prosecutors under which defense lawyers may "share and show the contents" of exculpatory evidence (such as the "identities and locations of cooperating witnesses and graphic photographs of the victims") but not provide the evidence to their clients to keep. The criminal defense lawyers may also agree to return such exculpatory evidence to the prosecutors "prior to the conclusion of [their] representation of the defendant." However, because "any materials that are in the lawyer's file at the conclusion of the representation must be provided" to the client, criminal defense lawyers should plan for the possibility that the representation might be "terminated unexpectedly" with the exculpatory evidence still in the lawyers' possession and thus available to the clients. To avoid this issue, criminal defense lawyers "should seek informed consent, preferably in writing, from [their] client before agreeing to this restriction on the client's access to information upon termination of the representation." Absent such an agreement, criminal defense lawyers "should not accept 'sensitive materials' that would be subject to" the clients' demand for entitlement to access when the representation ends.

Copyright 2000, Thomas E. Spahn